01994491
02-13-2002
Emily Crawford, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Emily Crawford v. Department of the Treasury
01994491
February 13, 2002
.
Emily Crawford,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 01994491
Agency No. 97-3137
Hearing No. 170-98-8028X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD), concerning her equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges she was discriminated against on the basis of
disability (unspecified), when her employment was terminated.
BACKGROUND
The record reveals that complainant, a probationary Tax Examining Clerk,
GS-03, with the Information Systems & Accounting Branch, FTD Section of
the Internal Revenue Service (IRS), at the agency's IRS Philadelphia,
Pennsylvania, Service Center, filed a formal EEO complaint with the agency
on March 5, 1997, alleging that the agency had discriminated against her
as referenced above. She was terminated, effective October 25, 1996,
during her probationary period, after she filed a claim for Workmen's
Compensation, resulting from a fall on the cafeteria floor at work on
August 23, 1996.
Complainant slipped on ice on the cafeteria floor and injured her
right shoulder and right jaw. Complainant was granted annual leave
for August 26, 27, and 28, 1996. Complainant, however, did not return
to work on August 29 or 30, 1996 and did not provide any medical
documentation for the absences. In a letter dated August 30, 1996,
by complainant's supervisor, complainant was advised that having not
received any documentation from complainant, complainant was being
charged 16 hours of Absent Without Leave (AWOL) for her absences on
August 29 and 30, 1996. Complainant's supervisor also advised that
AWOL could lead to disciplinary action, up to and including removal,
and that until documentation was received, complainant would continue
to be charged AWOL, although the AWOL charges could be removed if she
provided medical documentation to support the absence.
In another letter to complainant, dated September 5, 1996, complainant's
supervisor reiterated that the supervisor required the appropriate,
acceptable medical documentation to support complainant's absence;
that complainant still had not contacted the supervisor nor provided
the supervisor with any medical documentation; that complainant was
being charged AWOL from August 29, 1996; and that if complainant
did not contact the supervisor and provide the supervisor with the
required acceptable medical documentation by September 12, 1996, further
action could be taken. The supervisor received complainant's medical
documentation on September 11, 1996, indicating that complainant was
incapacitated with another appointment scheduled for two weeks later.
Based on this documentation, the agency on September 11, 1996, placed
complainant on Leave Without Pay (LWOP). By letter dated September 20,
1996, complainant's doctor advised, that while complainant �continues
to complain of pain in her neck and right shoulder� she �should be
able to return to work (light duty position) on September 30, 1996.�
ROI Ex. 11 at 127. Complainant was diagnosed with cervical and right
shoulder sprains.
Complainant returned to work on September 30, 1996, but failed to bring
a release form from her doctor. Complainant had to leave work until
she could pick up the release from her doctor the next day. However,
complainant failed to return the following day, October 1, 1996, and
was placed on AWOL. Complainant's supervisor again wrote complainant
a letter advising that complainant was expected to return to work on
October 1, 1996; that she did not return to work on October 1, 1996,
October 2, 1996, or October 3, 1996; that complainant did not contact
the supervisor; that complainant was being charged 24 hours of AWOL; and
that complainant would be charged AWOL for any additional days that she
did not report to work and in which complainant failed to contact her
(the supervisor) or provide her (the supervisor) with acceptable and
appropriate medical documentation; and that AWOL charges could lead to
disciplinary action, up to and including removal.
On October 8, 1996, complainant's supervisor issued complainant
a counseling memorandum regarding complainant's insubordinate and
inappropriate behavior on at least two occasions. The two incidents cited
included a discussion she had with complainant on August 22, 1996, about a
potential furlough and an incident on September 30, 1996, when complainant
argued with the supervisor about complainant's doctor not being able to
fax a letter of release until October 1, 1996. ROI Ex. at 34.
Complainant returned to work on October 15, 1996, with a note from her
doctor. However, the note was a progress report, and not the required
release. Thereafter, on October 25, 1996, complainant was issued a notice
of her termination from the agency by the Chief, Information Systems
and Accounting Division. The bases cited for her termination included
complainant's failure to timely submit medical documentation after her
August 23, 1996, accident; failure to follow directives (not following
instructions from her supervisor to submit medical documentation at work);
and causing a disruption at work on September 30, 1996. ROI Ex. At 59-60.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing, finding no discrimination. The AJ concluded that complainant
failed to establish a prima facie case of discrimination, because she
failed to establish that she was an individual with a disability and
also failed to establish that she was treated less favorably than a
person without a disability. The AJ further found that even assuming
arguendo that complainant had established a prima facie case of
disability discrimination, that the agency articulated a legitimate,
nondiscriminatory reason for its action. Specifically, the AJ found
that complainant's supervisor indicated that complainant continuously
failed to follow proper procedure for submitting medical documentation.
The AJ further concluded that complainant failed to establish by the
preponderance of the evidence that she was discriminated against on the
basis of her disability. The FAD adopted the AJ's decision.
On appeal, complainant argues that she returned to work for light duty
on September 30, 1996; that she was unable to lift her arm; that after
filling out some forms she was sent home; and that her supervisor called
her a �phoney� relating to complainant's ability to work. In addition,
complainant argues that her supervisor has always doubted her injuries.
Finally, complainant argues that insofar as she was terminated for AWOL
charges, the charges were reversed by the United States Department of
Labor, Office of Workers' Compensation Programs, since she was granted
compensation by that agency.
In reply, the agency submits that complainant was terminated during
her probationary period based on charges of AWOL, failure to promptly
submit medical documentation requested by her supervisor, failure to
follow her supervisor's orders, and causing a disruption in the work area.
ANALYSIS AND FINDINGS
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies
that its decisions were motivated by complainant's disability and there is
no direct evidence of discrimination, we apply the burden-shifting method
of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Heyman v. Queens Village Committee for Mental Health for
Jamaica Community Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks
v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Under this analysis, in
order to establish a prima facie case, complainant must demonstrate that:
(1) she is an "individual with a disability"; (2) she is "qualified"
for the position held or desired; (3) she was subjected to an adverse
employment action; and (4) the circumstances surrounding the adverse
action give rise to an inference of discrimination. Lawson v. CSX
Transportation, Inc., 245 F.3d 916 (7th Cir. 2001). The burden
of production then shifts to the agency to articulate a legitimate,
non-discriminatory reason for the adverse employment action. In order
to satisfy her burden of proof, complainant must then demonstrate by a
preponderance of the evidence that the agency's proffered reason is a
pretext for disability discrimination. Id.
Even assuming, arguendo, that complainant could prove that she was an
individual with a disability within the ADA, the agency has articulated
legitimate, non-discriminatory reasons for the adverse employment action,
i.e., complainant was AWOL and failed to comply with written instructions
to provide medical documentation for her absences,<2> and also that she
caused disruption at work. The Commission finds that complainant failed
to present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination.
Although complainant argues that her AWOL charges were reversed by
the United States Department of Labor, Office of Workers' Compensation
Programs, since she was granted compensation by that agency, complainant
does not dispute that she failed to comply with written instructions
to provide medical documentation for her absences, and also that she
caused disruption at work. The agency was not required to excuse
complainant's misconduct. An employer never has to excuse a violation
of a uniformly applied conduct rule that is job-related and consistent
with business necessity. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act, No. 915-002 at 47 (March 1, 1999); Hobson v. Department of Health and
Human Services, EEOC Petition No. 03A10011 (November 16, 2001)(affirming
removal of petitioner (although assuming individual with a disability)
based upon petitioner's poor performance evaluation, failure to follow
agency's leave requesting policy resulting in unauthorized absences,
and failure to follow direct orders); Sanchez v. Department of the
Army, EEOC Petition No. 03990129 (August 1, 2000). See also Stewart
v. Department of the Interior, EEOC Petition No. 03980128 (March 11,
1999); Brooks v. Small Business Administration, EEOC Petition No. 03980014
(September 24, 1998) (employers not required to excuse violation of
uniformly-applied conduct or job performance standards as a form of
reasonable accommodation). Although the United States Department of
Labor determined that complainant was entitled to compensation for
her work-related injury, it did not endorse complainant's failure to
timely comply with the agency's written instructions to provide medical
documentation for her absences or complainant's disruption at work.
The Commission cannot second guess an employer's business decisions
but can focus only on an employer's motivation for such decisions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). An employer has the discretion to determine how best to manage
its operations and may make decisions on any basis except a basis that
is unlawful under the discrimination statutes. Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978); Nix v. WLCY Radio/Rayhall
Communications, 738 F.2d 1181 (11th Cir. 1984). In addition, an employer
is entitled to make his own business judgments. The reasonableness
of the employer's decision may of course be probative of whether it is
pretext. The trier of fact must understand that the focus is to be on
the employer's motivation, not its business judgment. Loeb v. Textron,
Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979).
The Commission finds that the evidence is insufficient to show that
complainant was removed because of her disability rather than based
upon her failing to comply with written instructions to provide medical
documentation for her absences and being disruptive at work. In addition,
complainant has failed to establish a nexus, or causal relationship,
between her alleged disability and the reasons for her removal. See Lynch
v. Department of the Army, EEOC Petition No. 03950128 (September 7, 1995).
CONCLUSION
After a careful review of the record, the Commission finds that the AJ's
decision summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We discern no basis to disturb the
AJ's decision. Therefore, after a careful review of the record, the
Commission AFFIRMS the agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 13, 2002
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 There are limits to the medical inquiries an employer may make
under the ADA. An employer may make disability-related inquiries
only if they are job-related and consistent with business necessity.
EEOC Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act (ADA)
(July 26, 2000). Complainant does not allege that the agency's requests
for medical documentation for her absence were in any way improper.